The debate continues over the NSA's secret electronic intercepts of contents of communications where there is a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda, and where one party to the communication is outside the United States.
There has been no evidence offered suggesting that the NSA intercept program is widespread nefarious big brother program. Today the New York Times reports the program is "focused on a limited group of people:"
After all, officials who have been granted anonymity in describing the program because it is classified say the agency's recent domestic eavesdropping is focused on a limited group of people. Americans come to the program's attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States.
In the Washington Times, Charles Hurt writes about the over the Clinton administration's position on whether the president has an inherent power to conduct warrantless searches:
"The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
That same authority, she added, pertains to electronic surveillance such as wiretaps.
Yesterday Byron York, writing at the National Review Online, about the debate over the Clinton administration's position on whether the president has an inherent power to conduct warrantless searches:
On Tuesday, National Review Online reported the testimony of Clinton Deputy Attorney General Jamie Gorelick before the House Intelligence Committee in July 1994. Gorelick told lawmakers that the president had the authority to order physical searches — break-ins — for national-security reasons without having to get a warrant from anyone. Gorelick said the Clinton administration would go along with Congress's desire to give the authority to pre-approve those searches to the FISA court, but did not retreat from the position that the president held such authority himself.
The NRO article set off a wave of criticism from Clinton supporters. In a response entitled "The Gorelick Myth," the liberal think tank Center for American Progress, run by former Clinton chief of staff John Podesta, wrote, "York claims that, after the law was amended, 'the Clinton administration did not back down from its contention that the president had the authority to act when necessary.' That’s false. Neither Gorelick or the Clinton administration ever argued that president’s inherent 'authority' allowed him to ignore FISA."
The Center's position appears contradicted not only by Gorelick's testimony but by a statement she made to Legal Times in November 1994, several months after her testimony, in which she said, "Our seeking legislation in no way should suggest that we do not believe we have inherent authority."
York goes on to address an this Chicago Tribune article by John Schmidt President, an associate attorney general under Clinton. Schmidt argues that the presidents have the inherent authority to order warrantless surveillance:
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."
Today the Washington Post reports the Foreign Intelligence Surveillance Court, the secret court that oversees government surveillance in espionage and terrorism will have a "briefing" to address concerns about the legality of the NSA's program:
Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.
According to the Post, the judges could, demand that the Justice Department produce proof that previous wiretaps were not tainted. Warrants obtained through secret surveillance could be thrown into question. Exclusion, forbidding the use in a criminal prosecution of information improperly obtained, is the way abuses of our constitutional right to be secure from unreasonable searches are addressed.
As I discussed here, The Attorney General also makes a colorable argument that Authorization for Use of Military Force might support this program in addition to the president's inherent powers.
If Congress believes the Authorization for Use of Military Force is being read too broadly, Congress can pass legislation to correct it. Congress has been consulted about this program a dozen times. If Congress thought the program went beyond Authorization for Use of Military Force, Congress had an obligation to take action.
This ongoing hullabaloo about the NSA's program is missing an important perspective. The administration is trying to prevent another attack on this country. The NSA program is designed to focus on the organization that carried out the September 11, attacks in America.
Could the NSA program be abused? Of course it could. There is a danger that the surveillance will be abused. But If this surveillance is used only for the purpose of preventing another attack on America the harm of interfering with the privacy of people in this country seems small.
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